Excerpt:criminal - public servant - sections 4 (1), 10, 17, 144, 195, 476 and 528 of criminal procedure code, 1898 - petition against order of additional district magistrate - additional district magistrate not justified in stating that it was improper on part of additional first class magistrate to file complaint - first class magistrate acting as court or purely as public servant - additional first class magistrate is subordinate to district magistrate not to additional district magistrate - additional district magistrate not authority who can withdraw complaint filed by first class magistrate - order of additional district magistrate without jurisdiction and set aside - petition allowed.
- .....13 others an order was passed under section 144, clause (2), criminal p c. by the additional first class magistrate on 7-7-1952. before 7-7-1952 the additional first class magistrate called for a report from the police on the petition filed by the said thatayya. before the report was sent, the court was again moved by the said thatayya for an emergent ex parte order. it was then the ex parte order was passed on 7-7-1952 restraining the respondents in that petition, who are also respondents here (in cr. r. c. no 195 of 1953) from interfering with the bodi through which the petitioners were said to have been taking water to their lands. the respondents thereupon presented a petition to rescind that order on 17-7-1952. while that petition was pending thatayya reported to the station house.....

Judgment:ORDER

Somasundaram, J.

1. The above two petitions arise out of an order passed by the Addil. First Class Magistrate Masulipatam, under Section 144, Criminal P. C. On a petition filed on 2-7-1952 by one Bondalapati Thatayya against one Gollapudi Basavayya and 13 others an order was passed under Section 144, Clause (2), Criminal P C. by the Additional First Class Magistrate on 7-7-1952. Before 7-7-1952 the Additional First Class Magistrate called for a report from the police on the petition filed by the said Thatayya. Before the report was sent, the Court was again moved by the said Thatayya for an emergent ex parte order. It was then the ex parte order was passed on 7-7-1952 restraining the respondents in that petition, who are also respondents here (in Cr. R. C. No 195 of 1953) from interfering with the bodi through which the petitioners were said to have been taking water to their lands. The respondents thereupon presented a petition to rescind that order on 17-7-1952. While that petition was pending Thatayya reported to the Station House Officer on 21-7-1952 that the order under Section 144, Criminal P. O. has been violated by the respondents by completely obliterating the entire bodi. On 23-7-1952 the said Thatayya filed a petition before the Additional First Class Magistrate making the same allegations as in the petition to the police and requesting the Court to take action for the disobedience of the order. On a report by the police on 25-7-1952 that the order has been disobeyed, a complaint was filed on 7-8-1952 by the Additional First Class Magistrate before the Stationary Sub Magistrate, Avanigadda for an offence under Section 188, Penal Code. This case was numbered as C. C. No. 661 of 1952. The respondents thereupon preferred a petition on 25-8-1952 before the Additional District Magistrate for withdrawal of the complaint. The Additional District Magistrate withdrew the complaint and it is against that order Cr. R. C. No 195 of 1953 has been filed. The order by the Additional District Magistrate was passed on 9-9-1952.

2. While the petition for withdrawal of the complaint before the Additional District Magistrate was pending the Circle Inspector of Police registered a case against these respondents for offences under Sections 143, 186 and 430, Penal Code, alleging that these respondents have formed themselves into an unlawful assembly, and obstructed a public servant, to wit a police constable, and caused resistance to him, and also stated that they caused diminution of supply of water. This according to the charge-sheet, happened on 23-8-1952. The charge-sheet was filed on 27-11-1952 in C. C. No. 1006 of 1952 in Stationary Sub Magistrate's Court, Divi. The accused therein filed a petition stating that the Court could not proceed with the case and the petition was dismissed and, it is against the order Cr. R. C No. 203 of 1953 has been filed.

3. I Will take up first Cr. R. C. No. 195 of 1953. Two points are raised in the above revision. The first is that the Additional First Class Magistrate, Masulipatam, when he passed an order under Section 144, Criminal P. C. did so as a Court and the com-plaint filed by him for the offence under Section 188, Penal Code is by a public servant acting as a Court and the only authority that could withdraw the complaint is the authority to whom an appeal ordinarily lies from the Court of the Additional First Class Magistrate; that is to say, the only authority that could withdraw the complaint is the Sessions Judge of Masulipatam. The second point is, that even if it is held that the Additional First Class Magistrate, Masulipatam. was not acting as a Court, still the authority who could withdraw the'complaint is the District Magistrate, and not the Additional District Magistrate, as the Additional First Class Magistrate is subordinate only to the District Magistrate and not to the Additional District Magistrate.

(4) In support of his contention that the Additional First Class Magistrate was acting as a Court, when he passed an order under Section 144, Criminal P. C. the learned advocate Mr. Veerabadrayya relied on -- 'Arunachalam Pillai v. Ponnuswami, Pillai', AIR 1919 Mad 610 (A), a decision of a Division Bench of this Court, In that case the Bench has held that the order under Section 144, Criminal P. C. is a judicial and not an administrative order, and that the Magistrate was acting as a Court. In -- 'Nataraja Pillai v. Kangaswami Pillai', AIR 1923 Mad 473 (B), another Bench of this Court has held following the Full Bench ruling of this Court in -- 'Sundaram v. The Queen', 6 Mad 203 (FB) (C), that a Magistrate in passing an order under Section 144, Criminal P. C. is not acting as a Court and that the order is passed only as a public servant and not as a Court They referred to -- AIR 1919 Mad 610 (A)', and they differed from that ruling, and they pointed out that the previous decision of this Court in -- 6 Mad 203 (FB) (C) is a decision by a Full Bench of this Court in which it has been held that the proceedings under Section 144 (same as Section 518 of 1872 Code) are not judicial proceedings. The decision of the Full Bench in -- 6 Mad 203 (C)', was under the Code Of 1872. Section 518 of the Code of 1872 corresponds to Section 144 of the present Code. Section 435 of the present Criminal P. C. corresponds to Sections 294, 295 and 520 of the Code of 1872. In the Codes of 1872, 1882 and finally of 1898, there was a provision in Section 435 that the orders under Section 144 and proceedings under Chap. 12 and Section 176 are not proceedings within the meaning of Section 435 (Vide Clause 3 of Act 1898 Prior to its amendment in 1923). Section 435, Criminal P. C. provides for the calling for an examination of the records of any proceedings before any inferior Criminal Court. Section 435(2) (before the amendment of 1923) makes it quite clear that the proceedings before the Magistrate under Section 144 are not Judicial proceedings and the order is not liable to be revised by the High Court in its revisional jurisdiction. Neither the decision in -- AIR 1923 Mad 473 (B) nor the decision in -- AIR 1919 Mad 610 (A)', refers to this. I may say that the decision in -- AIR 1923 Mad 473 (B)', which was given prior to the amendment of 1923 was good Jaw then, and the decision in -- AIR 1919 Mad 610 (A)', was not good Jaw then. But now that Clause (3) has been repealed and it is not disputed that the orders under Section 144 are subject to the revisional jurisdiction of the High Court, it seems to me the reasoning in -- AIR 1919 Mad 610 (A)'; applies to orders now passed under Section 144 and -- A. I. R. 1923 Mad 473 (B)' cannot be held to be good law now. In my opinion, these proceedings are judicial proceedings, and it is. reasonable as pointed out in -- A. I. R. 1923 Mad 473 (E) to hold that 'if the order under Section 144 is passed by a person acting as a Court that person must also be treated as a Court when he has sanctioned the prosecution for the disobedience of the same'. This later decision in --AIR 1923 Mad 473 (B)' is an authority for holding that if the order under Section 144 is passed by an authority, it must be treated as a Court when it sanctions prosecutions also. Coming to a later decision in -- 'Nagu Servai v. Emperor : AIR1934Mad473 Bardswell J. sitting as a single Judge without noticing the decision in -- A. I. R. 1923 Mad 473 (B)' follows -- AIR 1919 Mad 610 (A)' and holds that the filing of the complaint by the Joint Magistrate for disobeying the orders under Section 145, Criminal P. C. was a judicial act. In this decision also there is no reference to the repeal of Clause (3) or Section 435, Criminal P. C. In -- 'Vijayaranga Reddiar v. Muthuswami : AIR1945Mad58 there was an order under Section 144 promulgated by the Sub Magistrate, and for disobedience of the same a complaint was filed by him under Section 186, Penal Code. There, Kuppuswami Aiyar J. refers to the decision in --AIR 1934 Mad 473 (D)' and comes to the conclusion that the act of filing a complaint by the Magistrate was a judicial act. It is, therefore, clear from the decisions cited above and from the repeal of Clause (3) of Section 435, that the order was not only judicial, but that he must be acting as a Court.

5. It may be mentioned that Section 476 Criminal P. C. is restricted now-only to Clauses (b) and (c) in Section 195 and does not alter (apply?) to Clause (a), though prior to amendment of 1923, it was not so restricted and applied to whole of Section 195. It is, therefore, contended that a public servant when he filed a complaint, for an offence under Section 133 cannot be acting as a Court. What exactly is the scope of Section 476, Criminal P. C. and what its bearing is on the question as to whether the Sub Magistrate, when passing an order is only a public servant or is a public secant acting as a Court, I do not propose to discuss and give a decision in this case, as this case can be decided on the second point that is raised by the learned advocate for the petitioners. The question will arise only when we are called upon to decide as to which clause of Section 195 applied for the withdrawal of a complaint filed by the Magistrate, whether it is Clause (3) or Clause (5). As in either view the Additional District Magistrate has no jurisdiction, it is unnecessary for me to decide that point.

6. Now the question is whether the Additional First Class Magistrate is subordinate to the Addl. District Magistrate within the meaning of Section 195 (5), Cr. P. C. Under Section 10, Criminal P. C. an Additional District Magistrate has got all the powers of a District Magistrate, and therefore it is contended that when the First Class Magistrate is subordinate to the District Magistrate, He is subordinate to the Additional District Magistrate also. This view is upheld in -- 'Jaswant v. State', : AIR1951All828 (P). That is a decision by a single Judge. The learned Judge states as follows:

'The public servant whose order was disobeyedhad passed it as a Sub Divisional Magistrate, andin that capacity he was subordinate to the District Magistrate. An Additional District Magistrate has got the powers of the District Magistrate. Even otherwise, a Sub Divisional Magistrate as a public servant, is subordinate also tothe Additional District Magistrate. Consequently the complaint was rightly filed by the Additional District Magistrate.'

There is no discussion and it proceeds on the assumption that the Sub-Divisional Magistrate is subordinate to Additional District Magistrate. A contrary view is expressed in -- 'Prabhulal Ramlal v.Emperor', (G). Thatis a decision by a Bench of that Court. At page87 this is what they say,

'The fact that the Additional District Magistrate may have all the powers of the District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the district who can be a District Magistrate.'

Earlier they referred to Sub-section (3) of Section 10 under which the Additional District Magistrate is held as subordinate to the District Magistrate in certain respects. I agree with the reasoning in -- A. I. R. 1914 Nag 84 (G). The fact that under certain circumstances and for certain purposes mentioned in Clause (3) of Section 10 an Additional District Magistrate is considered as a subordinate to the District Magistrate clearly shows mat the Additional District Magistrate does not enjoy the same status as that of a District Magistrate and by virtue of Section 17 all Magistrates are subordinate to the District Magistrate. The Additional First Class Magistrate is, therefore, subordinate to the District Magistrate and not to the Additions District Magistrate.

7. Whichever view is taken, either the First Class Magistrate acting as a court or purely as a public servant, the Additional District Magistrates is certainly not the authority who can withdraw the complaint filed by the First Class Magistrate. In one view it would be the Sessions Court and in another view the District Magistrate. The order of the Additional District Magistrate, therefore, is without jurisdiction, and it is hereby set aside. I may in passing observe that the Additional District Magistrate was not quite justified in stating that it was improper on the part of the Additional First Class Magistrate to file a complaint. There was an order under Section 144 and whether it was rightly passed or wrongly passed, it was disobeyed according to the report of the police and the allegations contained in the petition, and disobedience is an offence. If the First Class Magistrate was satisfied that his order was disobeyed, the proper thing for him to do was to file a complaint, and not sit silent without taking action for the disobedience. The Additional District Magistrate in my opinion was not justified in passing such remarks against the Additional First Class Magistrate. The order of the Additional District Magistrate in Cr. R. p 16 of 1952 is hereby set aside and the order which was sent by him to the Stationary Sub Magistrate, Avanigadda is withdrawn. The result is that the parties are relegated to the position of a complaint being filed by the Additional First Class Magistrate, Masulipatam, against the respondents in Crl. R. C. No 195 of 1953 for an offence under Section 183, Penal Code. It is open to the respondents to take such steps as they may deem fit either by way of appeal or by way of revision to such authorities to whom the right of appeal lies, or who has the power to withdraw complaint. Criminal R. C, No. 195 of 1953 is allowed.

8. As regards Cr. R. C. No. 208 of 1953 the main contention is that the charge-sheet is an attempt to evade the sanction provisions. It is clear from the charge-sheet that the offence was on a different date, and also the offence is under Section 188 and not under Section 138, Penal Code. The ruling in --'Chinnayya In re', AIR 1948 Mad 474 (H), will not apply to the facts of this case. Criminal R. C. No. 208 of 1953 is therefore dismissed.